Ace Beverage Co.

National Labor Relations Board - Board Decisions

Jul 17, 1980

250 N.L.R.B. 646 (N.L.R.B. 1980)

I)F 'ISIONS OF NATIONAL LABOR RELATIONS BOARD
Ace Beverage ('o. arlid Uilliam W. Hloffer, Ray
I'Frstenaui, lEpifanio (;onzalez, and Ron I)rake.
( t'ses 21 CA 15142, 21-CA 15150, 21-CA-
15162. and 21 (',\ 151t1
.Irly 17, 198(0
SlIPPl l' 'N I'AI. I)l. CISIO()N ANI)
()IDI R
131 ( 1AIRNI &N FANNIN(I ANI) M BI11(1RS
JI:NKINS SNI) )Dl NItI I O
()I) ly,' T . 1)7(. 'lrgilng Piarty Ron D)rake'
filed a (Niot lo to thle Board for Clarification of
anl o'()r- l)ctlrnlllation of Compliance w ith the
ioar;ll's l)ccision alllld ()Orde' ill ce Beverage (Co. 2
1 it i nll()lion ile (Charging Party alleged, intter alia,
thai tiu Iah kpiai ftinllllla adloptlcd by tlre Gcircrral
C niscl in ile isl;ill proccedinig, which takes into
;Iccoir t ri strik( ,,tllemellt agreelment betwveen Re-
spoilderl :itnd Ihre lUnion(, is iuconsistenlt with the re-
inrstltl(ment aindl backpay rlemedies ordered by the
Ii, ,Tl. iiill tIi c t thr ,iartl i should therefore cl;irify
its rrirctdi:i rtlder or tetermline whel.ther there has
hetn Co)lllia;ec thtIrewlilh. ()n January 15. 1980,
I(e ':,id;I! isl cd ia Notice 'To Shoxv Cause why tilhe
('ilal rig Ptl'rly's niotionri should rot be granted and
ihy! thie lioalrdl should not interpret its Order in
thiis I uottctdlirig ill tile nI.rlntcr urged by the Charg-
ill, Parl arid order further proceedings consistent
witlh Ili;t tclctrniinartioIl. 'I'hereafter, the General
Courisel filed a response to the Charging Party's
nmotioli a(nd Resporndeitl atl(d tile Charging Party
filed Icesponlses to thit Notice l'o Show Cause.
I'ursiianit to the provisionis of Section 3(b) of the
N;tllonal l a1lbo Relations Act, as amlended, the Na-
lional I ahor Relations lBoalrd has delegated its au-
tho lity in thiis piroceeding to a three-memiber panel.
li''e( iioar(l hais considered the entire record
hIr-iii including tire Ibriefs and exhibils of the par-
ties filed ii conirrcctionI with tile Charging Party's
M1olnai ;l(nd makes tle l'ollowing findings and corr-
Ct lutsions.
I'lhe Facts
Based inm part oni charges filed by the Charging
)arly on ()Octohber 26, 1976, the consolidated com-
plaint in th1e illstalt proceeding issued orn Decem-
her 21, 1')7. Ihelreafllter tie Board, on December
16. 1977. isiuedl ai I)ecision and Order, supra,
adoptiing Admririristrative Law Judge Bernard J.
Sefl's firlinig thilr, inter /lia, Respondent violated
Section 8(a)(3) land (1) of the Act by demoting on
September 14, 1976, er, ployees Ron Drake and
(t ullt , tl Icltrl ie cs to i.'t , IK ); . I;, i t (ihtrgilng I)',t Rit
' 71 NI RlI l20 !977}
250 NI RB1 No. 66
I-piflauo Gonzalez fronm tile position of route super-
visor to that of route salesman because they refused
to agree to work in the event of a strike. In his De-
cision the Administrative Law Judge found that,
commiencing October 6, 1976, Respondent's em-
ployees, including Drake and GConzalez, engaged in
a lawful strike which ended oil December 6, 1976,
when the Union and various beer distributors, in-
cluding Respondent, agreed upon a strike settle-
ment and a new contract. The Administrative Law
Judge noted, but made no ruling on, the strike set-
tlemient agreement containing a provision that, inter
alia, if a decertification petition was pending in-
volving a unit of salesmen, an employer would be
required to reinstate the striking salesmen only if
the Ul1ion won the decertification election. Such a
decertification petition was filed by Respondent's
emiiiployees, but the ballots of the ensuing election
conducted on January 6, 1977, were impounded
pending the outcome of certain other urfair labor
practice charges against Respondent and other beer
distributors. 'lihe Board in its D)ecision and Order
nmade ino coririmenit on tile settlement and adopted
thie Aldministrative law Judge's recommendation
that Respondent be ordered to offer Drake and
G(onzalez immediate and full reinstatement to their
former jobs or, if such positions no longer existed,
to substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, and to make them whole for such loss of pay
as they may have suffered as a result of Respond-
ent's discrimination against them. :
On December 18, 1978, the Region 21 compli-
ance officer wrote a letter to Respondent stating in
pertinent part:
Under the terms of the parties' strike settle-
meit, however. the Union waived the rights of
Drake and G(onzalez to be reinstated as route
salesmen, the position they held at the time of
the strike, because it agreed that they would
not be returned to that position if the Union
was unsuccessful in winning the election under
the pending decertification petition. In view of
these circumstances, a determination has been
made that the backpay shall be calculated on
the basis of the difference between what Gon-
zalez and Drake would have earned as route
supervisors and what they would have earned
as route salesmen had they returned to the
Employer after the strike.
On March 1, 1979, the Charging Party's counsel
wrote a letter to the compliance officer contending
that the above-described backpay formula was
:' I llo', mig i"ll. ICe ', the I b r's i)i.lclll }di t'ill erci i s w ; dltrlillrn cd
thiit the Union ha.d l )st Ih dcccrtlicaltion cct IttIL
ACI 3liIVI'.RA(iF Ct).
based on a theory regarding the strike settlement
which was raised for the first time at the compli-
ance stage and \wIas incoinsistent with the reinstate-
ment and backpay remedies ordered by the Board.
The letter requested the issuance of a hackpay
specification and notice of hearing thereon to
afford the Charging Party an opportunity to liti-
gate these contentions. By letter dated March 14,
1979, the compliance officer denied this request,
stating that the effect of the strike settlement was
considered to be a novel compliance issue and had,
therefore, been submitted by Region 21 to the Gen-
eral Counsel, Division of Operations Management,
for advice, where it was determined that backpay
should be computed in the manner contested by
the Charging Party. The Charging Party then filed
an appeal to the General Counsel, arguing that
when the Hoard decided its original Decisions and
Order, supra, it was fully aware of the strike settle-
ment, yet did not discuss or adopt any proposition
that the agreement affected Drake's entitlement to
reinstatement or to any part of the backpay which
might be due him. Instead, the Charging Party
argued, the Board clearly directed Respondent to
reinstate Drake to the position of route supervisor
from which he was unlawfully demoted on Sep-
tember 15, 1976, and to pay him the wages he
would have earned as a route supervisor from that
date until he was offered reinstatement (less interim
earnings and wages he would not have earned
during the strike). Thus the appeal stated:
2... we cannot agree, however, that the Com-
pliance Officer or the General Counsel has any au-
thority to "compute" a discriminatee's backpay by
means of a formula which derogates from the un-
ambiguous direction of a Board remedial order,
and effectively reduces the backpay ordered by the
Board by at least 80% in the absence of a formal
motion for modification and/or clarification of the
Board's backpay Order, and/or a formal backpay
specification, which the Charging Party would be
permitted to litigate before the Board.
By letter dated June 5, 1979, the General Coun-
sel denied the Charging Party's appeal, asserting
that the determination of whether such a contro-
versy exists or whether a charging party's or a dis-
criminatee's objections to a backpay computation
warrant further formal proceedings before the
Board is within the General Counsel's administra-
tive discretion, no less than would be his determi-
nation whether to issue an unfair labor practice
complaint.
The General Counsel further stated that the
backpay formula at issue herein is based on the
theory that the waiver of reinstatement to route
salesman position embodied in the strike settlement
agreement is an intervening event that mitigates
total backpay liability. The General Counsel con-
cluded that the backpay formula fully remedied the
financial loss resulting from the unlawful demotion
of Drake and effectuates the policies of the Act.
On June 12, 1979, the compliance officer sent a
letter addressed to Respondent, with copies to all
parties, computing the Charging Party's backpay
and interest pursuant to the contested backpay for-
mula for the period ending with his March 1979 re-
instatement as route supervisor.4 On June 21, 1979,
the case was closed, the Region having determined
that Respondent complied with the Board's Order.
Contentions of the Parties
In his motion and response to the Notice To
Show Cause the Charging Party reiterates the con-
tentions set forth in his appeal to the General
Counsel; namely, that pursuant to the Board's De-
cision and Order he is entitled to reinstatement to
his former position as route supervisor and to back-
pay equal to the amount he would have earned as
route supervisor from September 15, 1976, when he
was unlawfully demoted to route salesman, until
March 21, 1979, when he was reinstated pursuant
to a valid offer. In this regard, the Charging Party
contends that the strike settlement agreement does
not constitute a valid waiver of his backpay rights.
He further contends that the General Counsel and
Respondent are now precluded from so asserting
because at no time prior to the compliance stage of
this proceeding had either of them suggested that
the settlement agreement, which was in evidence
before the Administrative Law Judge, "extin-
guished, or diminished" Respondent's backpay lia-
bility.
In their responses to the motion and/or the
Notice To Show Cause the General Counsel and
Respondent contend that the instant motion should
be denied because the General Counsel's formula,
which computes the Charging Party's backpay as
the wage differential between his original position
as route supervisor and the position of route sales-
man which he held at the time of the strike, is ap-
propriate. They reason that the Union, by the
terms of the strike settlement agreement, waived
the Charging Party's right of recall to the route
salesman position which he held at the time of the
strike; that his waiver did not extend to, and there-
fore does not compromise, the Charging Party's
right to reinstatement to the position of route su-
pervisor from which he was unlawfully demoted
4 Ihe comnplilance officr ill Jisl clttcr stiller thli D)rake was rcinltate(l
March 21. -79. In its. re'ponlc to, he Nollc To Shou ( Causte.. Resppond-
clt sets March 5. 1979., s the dale iI tcndered a .aia il'ter lof rcinslate-
ilcnt I the Chargin g Iart)
h47
DECISIONS OF NATIONAL LA()OR RELATIONS BOARD
and which he sought to preserve by filing an unfair
labor practice charge before the conclusion of the
strike settlement; and that, in these circumstances,
the waiver of recall to the route salesman position
should be viewed as an intervening event that miti-
gates, if it does not extinguish, Respondent's back-
pay liability.
Respondent further contends that the method of
computing backpay herein is not properly before
the Board because determination of whether issu-
ance of a backpay specification and further pro-
ceedings before the Board is necessary is a matter
solely within the General Counsel's administrative
discretion. The General Counsel, on the other
hand, has indicated that if the Board concludes that
the proposed backpay formula is inappropriate and
does not fully remedy the unlawful demotion of
the Charging Party, he would join in the request to
clarify the Board's Order and will compute back-
pay accordingly.
Discussion
At the outset we find no merit to Respondent's
contention that the General Counsel's authority
and discretion in compliance matters 5 is analogous
to that granted him under Section 3(d) of the Act
with respect to issuance of unfair labor practice
complaints, 6 and that, therefore, his action in com-
pliance matters is also final.7 Unlike the delegation
of "final authority" to issue complaints under Sec-
tion 3(d), however, the delegation of compliance
matters to the General Counsel is designed to carry
5 Sec. 102 52. et seq. of the Board's Rules and Regulations. Series 8. as
amended, provide fior backpay proceedings and state. im pertinent part:
After the entry of a Board order directing the payment of backpay
or the entry of a court decree enforcing such a Board order, if it
appears to the regional director that a controversy exists between the
Board and a respondent concerning the amount iof backpay due
which cannolt be resolved without a fiormal proceeding, the regional
director may issue and serve on all parties a hackpay specification in
the name of the Board
Sec. 101.13(h) of the Board's Statement If [Procedure states. in pertinent
part:
If the respondent effects full compliance with the terms of the
order, the regional director submits a report Il that effect to Wash-
ington. D.C, after which the case may be closed Despite compli-
ance, however. the Board's order is a continuing (one; therefore, the
closing of a case on compliance is necessarily conditioncd upon the
continued observance of that order
I Sec l3(d) of the Act states, in pertinent part, that the General Coun-
el:
shall have final authority. on behalf of the Board, in respect of
the investigation of charges and issuance of complaints befoire
the Board, and shall have such other duties as the Board may pre-
scribe or as may he provided by law
General Counsel also took this poisition in denying the Charging
Party's appeal from the backpay computatiotn made herein pursuant It
the backpay formula now at issue II is not clear whether the General
Counsel still holds to this view! We note, howes ver. that the General
Counsel does not argue this position before us and il fact urges us to
clarify the Board Order in this case if we find that the disputed formula
does not fully remedy the unlawrful demlotiol of the Charging Parly
out the Board's intent that its orders be properly
implemented. Thus, in compliance matters the Gen-
eral Counsel does not act on his own initiative as
he does in the issuance of complaints but as the
Board's agent in effectuating the remedy ordered.8
In this regard, Section 101.13(b) of the Board's
Statements of Procedure specifically provides that
despite compliance, the Board's order is a continu-
ing one and that the closing of a case is thus condi-
tioned upon continued compliance with the Board's
order. This equally as true when a proposed back-
pay formula fails to comport with the Board's
order as it is when a Respondent has breached the
provisions of compliance.
Accordingly, we find that there is no jurisdic-
tional bar to the review of the General Counsel's
action in the compliance stage of this proceeding,
and that the issues raised by the instant motion are
properly before us.
As to the backpay formula proposed by the Gen-
eral Counsel and Respondent, we find that it fails
to comport with the Board's remedial order in Ace
Beverage Co., supra. It is uncontested that pursuant
to the Board's Order the Charging Party is entitled
to reinstatement to his predemotion position of
route supervisor and to backpay commencing on
the date he was unlawfully demoted. It is also clear
that he was not validly offered reinstatement or re-
instated to that position until March 1979. As for
the strike settlement agreement waiving the Charg-
ing Party's poststrike right to recall to his demoted
route saleman position, we find that it is irrelevant
to his backpay rights and, hence, neither mitigated
nor extinguished Respondent's obligation under the
Board's Order to make the Charging Party whole
for any loss of pay he may have suffered as a result
of its unlawful conduct. The strike settlement
agreement was a private one which bore no rela-
tionship to Respondent's unfair labor practices re-
garding the Charging Party. The latter was not a
party or privy to the agreement, and its terms were
wholly unconcerned with the Respondent's pres-
trike unlawful demotion of the Charging Party
from route supervisor to route salesman. Further-
more, the agreement did not address itself to route
supervisors at all, and thus by its very terms had
no application to those like the Charging Party
who are entitled to be restored to the position of
route supervisors with all attendant rights and
privileges in order to remedy the unfair labor prac-
tice committed against them.
The General Counsel and the Respondent argue,
nevertheless, that the Charging Party's participa-
tion in the strike as a route salesman was an inter-
' See Juo,hi Irutnjer InL . 227 Nl RH 1211. 1214 (1I77)
648
ACE BEVERAGE CO
vening event which served to make the strike set-
tlement agreement applicable to him-at least in
that capacity. This argument, however, ignores
that it was the Charging Party's unlawful demotion
which cast him in the role of a route salesman.
That being so, the Charging Party's position as a
route salesman cannot be divorced from the Re-
spondent's culpability. Thus, while it is true that at
the time of the strike the Charging Party was a
route salesman and not a route supervisor, it is also
true that his situation was not of his own doing.
Rather, Respondent's unlawful conduct had
brought it about. Absent Respondent's unlawful de-
motion of him, the Charging Party would not have
been a route salesman during the strike and his job
would not even arguably have been subject to the
terms of the strike settlement agreement.
It would be anomalous indeed for this Board to
hold that the Charging Party's backpay rights as a
route supervisor can be compromised by a private
strike settlement agreement which waives the right
of recall to the position of route salesman, when
the Board decided that the Charging Party had
been unlawfully demoted to that position before
the strike and ordered his reinstatement to the
route supervisor position he held before the unlaw-
ful demotion. Since Respondent's wrongdoing
caused the Charging Party to be placed in the cir-
cumstances which, it is argued, make him vulner-
able to the agreement, Respondent, and not the
Charging Party, must bear the burden of its illegal
conduct. That burden includes the cost of making
the Charging Party whole without reliance on the
agreement and its application. Any other conclu-
sion would permit the Respondent, as the wrong-
doer, to benefit from its wrongful action.
The argument of the General Counsel and Re-
spondent also fails to fully consider that the Charg-
ing Party's status as a discriminatee under the Act
bestowed upon him rights which set his situation
apart from that of other striking employees.9 Al-
though they have acknowledged a difference exists
to the degree that the strike settlement agreement
did not completely extinguish the Charging Party's
right to reinstatement and backpay in the capacity
of a route supervisor, their position evidences a
failure to recognize the full nature of the remedial
rights which his discriminatee status extends to him
under the terms of the Board Order. Thus, they
have failed to realize that in determining his rein-
statement and backpay rights for the period he par-
ticipated in the strike, the Order in effect requires
9 One other employee, Epifano Gonzalez. who was also unlawfully de-
moted to a route salesman position, maybe similarly situated Ho',weser,
Gonzalez' status with respect to this compliance matter can not be deter-
mined on the state of the record now before us
that he be treated as if he did so as a route supervi-
sor, the position which he would have held but for
the discrimination practiced against him, and not as
a route salesman. Only in that way can the Board's
Order, as it applies to the Charging Party, be prop-
erly and fully carried out.' °
In view of the foregoing, we find that, because
the strike settlement agreement is unrelated to the
violation found and immaterial to the rights of the
Charging Party to reinstatement and backpay as a
striker and thereafter, it is wholly irrelevant to the
effectuation of the Board's Order concerning him.
Consequently, we further find that the proposed
backpay formula, to the extent it is premised on
said agreement, is defective and must, therefore, be
rejected. I I
Accordingly, we find that the Charging Party is
entitled to reimbursement for the loss of pay he
would have earned as a route supervisor from Sep-
tember 15, 1976, the date he was unlawfully demot-
ed, until he was reinstated to his former or a sub-
stantially equivalent position or validly offered
such reinstatement,' 2 less interim earnings and the
wages he would not have earned during the strike.
Having so found, we order the record herein be re-
opened, and the case be remanded to the Regional
Director for the issuance of a backpay specification
to determine the exact amount of backpay due in
accordance with this Decision. 13
ORDER
It is hereby ordered that the Charging Party's
motion be, and it hereby is, granted.
'o So as to asoid any further misconstruction of that Order and how it
is to be effectuated, the Charging Pariy"s status as a route salesman shall
not be considered or given any effect in assessing his right to reinstate-
ment or in computing his backpay while he participated in the strike, or
thereafter Of course, insofar as his participation in the stirke-regardless
of his status-constituted a withholding of his services from the Respiond-
ent. that shall be taken into account in the hackpay computation Further.
our conclusions here do not mean that. for the period between his demo-
tion and striking, his earnings as a route salesman should not be enter-
tained as an offset against gross backpay owing him as a route supervisor
during such period Rather, our holding means that his route salesman
status is not relevant for any other purpose and does not. therefore. oth-
erwise survive to affect his remedial rights
i In light of the foregoing, we do not need to consider the Charging
Party's contention that, because the General Counsel and Respondent did
not raise the effect of the settlement agreement on the Charging Party's
backpay prior to the compliance stage of this proceeding. they are nov
foreclosed from asserting that it extinguished or diminished Respondent',
hackpay liability
i: We note that Respondent claims that it offered reinstatement to the
Charging Party on March 5, 1979. and that the General Counsel consid-
ers his hackpay period to end with his reinstatement on March 21. 1979
This conflict can be resolved in the further stage of this proceeding as
ordered below
" It is not entirely clear whether Epifano Gonzalez is in exactly the
same position a, the Charging Party With respect to hackpay However.
we shall reopen the record with respect to Gonzalez as , ell and direct
that the Regional Director issue any backpay specification necessary to
make Gonzalez whole consistenlt with our findings set forth alhoe with
respect to the backpay due the Charging Party
DECISIONS OF NATIONAI. LABOR RFELATIONS BO()ARD
ITr IS FURTHER ORDE RII) that the record in this
proceeding be, and it hereby is, reopened, and the
case be remanded to the Regional Director for
Region 21 for the issuance of a backpay specifica-
tion and notice of hearing thereon, as provided in
Section 102.52 of the Board's Rules and Regula-
tions, Series 8, as amended, and that, thereafter, the
procedure shall be governed by the provisions of
Section 102.54 of the Board's Rules and Regula-
tions.
650